The Magazine

Freelance Writers of the World, Unite!

You have nothing to lose but your copyright fees.

Aug 1, 2005, Vol. 10, No. 43 • By CHARLOTTE ALLEN
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I OPENED MY MAIL A couple of weeks ago and was surprised to discover that I'm a plaintiff in a lawsuit. The name of the case is In re Literary Works in Electronic Databases Copyright Litigation, and it's been pending since 2000 in the federal district court in Manhattan. According to the legal document I received, I'm a freelance writer (which I am), and I've got a beef against such outfits as Dow Jones (I've written for the Wall Street Journal and Barron's), the New York Times Co. (that's a newspaper I've never written for), and Lexis/Nexis, a major electronic database that collects and distributes articles from many newspapers and magazines. The legal document informed me that I am quite riled up because the newspapers and magazines I've written for have "violated the copyrights of freelance authors" by licensing our works, after publication, to electronic databases such as Lexis/Nexis "without the authors' permission" during the 1980s and early 1990s. The document further informed me that a vast array of media companies, including many not named as defendants in the lawsuit, had put together a settlement fund of up to $18 million from which we writers would be compensated for this appalling violation of our copyrights. Now that's real money.

Reading along further in the settlement document, I uncovered certain aspects of the lawsuit that made me uncomfortable. This class action, like all federal class actions, was filed by a number of individual writers who were deemed to be "representative plaintiffs" who could speak for the God knows how many tens of thousands of the rest of us freelance writers in America. Not many of the 23 names on the "representative plaintiffs" list were familiar to me, but some of the names I did know filled me with foreboding. One was that of the novelist E.L. Doctorow, best known for an anti-Bush graduation-speech rant at Hofstra University last year that nearly got him booed offstage, and also for his novel The Book of Daniel (later a movie), which argued that the convicted and executed atomic spies Julius and Ethel Rosenberg were actually innocent. Since, along with the noted historians Ronald Radosh and Joyce Milton, I believe the Rosenbergs were guilty as sin, I wondered how "representative" of me and my views Doctorow could be. Two other names I recognized belonged to the radical feminists Andrea "Sex Is Rape" Dworkin (recently deceased) and Letty Cottin Pogrebin, a onetime big cheese and pal of Gloria Steinem at Ms. magazine. Unfortunately, anti-patriarchy isn't my thing.

Then came what might be called the "money paragraph" of the document, the section that explained how the $18 million pot would be divvied up. The settlement sets up three classes of articles written by freelancers for newspapers or magazines. The first consists of works registered with the U.S. Copyright Office within three months of publication. The authors of those works win fairly big: from $875 to $1,500, depending on how frequently they wrote for any one publication. Next come those who waited, presumably until after the suit was filed, to rush to the Copyright Office, as long as they got there before December 31, 2002. Those folks collect the greater of $150 or 12.5 percent of the original sales price of their articles. Then come the plebes: those who didn't bother to register their works at all. They collect anywhere from $60 per article all the way down to $5 (or possibly less, as the settlement calls for steep discounting with respect to articles published before 1995). Before they can receive their money, writers in all three categories must file a "proof of claim" for each article by September 30 of this year stating its title and publication date and the amount for which it was sold. In return, they sign away their right to any future compensation for electronic rights.

Now here comes a hitch that you non-writers should know about: About 99.9 percent of freelancers never bestir themselves to register their works with the Copyright Office. Books, yes (the publisher takes care of that); articles, hardly ever. Indeed, I'm told by someone close to the class action that the lawyers who filed it wanted to have all "representative" plaintiffs be registered--and accordingly had a tough time digging up name-plaintiffs besides Doctorow and the others. Registering a copyright isn't difficult, but it's a hassle--you have to fill out a form and send a copy of the work to Washington--and it also costs $30. For a long magazine article sold, say, to the reasonably generous Atlantic, that's not too bad, but it's a big chunk, when added to taxes, out of a $350 book review sold to the Washington Post. Failure to register doesn't mean that writers forfeit their copyrights under federal law, but it does mean that if they sue for infringement, they have to prove that they were monetarily harmed. By contrast, those who register and then sue for infringement receive automatic damages plus attorney's fees under the 1976 Copyright Act.

The upshot is that the vast majority of writers who go to the trouble of sorting through decades-old boxes of clippings and filling out the claim forms stand to collect $60 per article tops for all that paperwork (the average payout per article will probably be more like $25). The converse is that nearly every one of these people, if they had to go to court and prove actual damages, would probably collect zilch. For who is harmed--and how--when a newspaper sells its content to a database? Electronic databases such as Lexis/Nexis and University Microfilms are research tools typically used by libraries, schools, and other writers, and the articles appear in plain-vanilla text-only format. As far as I'm concerned, I'm perfectly happy to have my work distributed via Nexis; it gets my name around.

IF 99.9 PERCENT OF THE CLASS MEMBERS in In re Literary Works in Electronic Databases will likely walk away with peanuts, the lawyers who brought the suit--two law firms in San Francisco and one in Philadelphia--stand to collect big time. The settlement document hands the three firms $3.825 million in attorneys' fees plus more than $500,000 in costs. That's something to think about: $400 for me, $4 million for my lawyers.

The class action suit filed by my new friends Doctorow, Dworkin, Pogrebin, et al., is actually an offshoot of another electronic-database lawsuit filed in 1993, Tasini v. New York Times Co., that went all the way to the Supreme Court in 2001. Tasini was not a class action, but as with "my" lawsuit, the 13 writer-plaintiffs in Tasini seemed as well known, if not better known, for their far-left political views as for their literary output. They included such figures as: H. Bruce Franklin, a Maoist literature professor at Rutgers who had been turfed from Stanford in 1972 for helping students occupy the campus computer center to protest the Vietnam war; Barbara Garson, another Vietnam-era antiwar-horse who had written a 1967 play, MacBird, analogizing President Lyndon Johnson to Shakespeare's murderous thane; New York University law professor Derrick Bell, a cofounder of the "Critical Legal Studies" movement that views the edifice of the law as a smokescreen for capitalist power grabs; and Jonathan Tasini himself, a labor-movement polemicist whose writings have targeted every corporate evil from Wal-Mart to globalization and then some.

Tasini was then president of the National Writers Union, one of three professional organizations for writers involved in both lawsuits. The other two, the Authors Guild and the American Society of Journalists and Authors, concern themselves mainly with writers' issues--finding work, fighting perceived censorship, and the like. But the National Writers Union, an affiliate of the United Auto Workers (only a writer could see the metaphorical connection), has branched out into an all-purpose advocacy group at the left end of the ideological spectrum. The union backs gay marriage, condemns the war in Iraq, and has announced its opposition to discrimination against its "transsexual, transgender [there's a difference?], and cross-dresser members." When the University of Minnesota expressed second thoughts about its press's planned publication of Judith Levine's book Harmful to Minors (2002), which claimed there was nothing wrong with children having sex, the union fired off a letter of protest, charging the university with helping to "perpetuate a taboo on the subject of minors and sexuality." The National Writers Union was the driving force behind the Tasini lawsuit, with part of the litigation funds coming out of the dues of the folks who build the SUVs that left-wing writers denounce out of the other sides of their mouths.

There is something ironic about avowed leftists' claiming capitalist-style property rights in their writings, but perhaps it has something to do with the Marxist "labor" theory of value. At any rate, the case went to the Supreme Court after a federal appeals court ruling in the writers' favor. The issue was whether putting an article into an electronic database amounted to a second publication of the work, analogous to republishing the article in an anthology. The Supreme Court ruled 7-2 that it was--and the court was right. Up until then, the standard writer's contract granted only the "first North American serial rights" to the newspaper or magazine, leaving the writer free to sell the piece a second time elsewhere later. No one, either writers or publications, had even thought about databases--because they didn't exist until the 1980s. Tasini was one of those rare decisions in which the Supreme Court's conservative bloc--Antonin Scalia, William Rehnquist, and the like--signed on to a majority opinion written by the ultra-liberal justice Ruth Bader Ginsburg.

Of course, long before the Tasini decision came down in June 2001, just about every newspaper and magazine in America hired copyright lawyers to rewrite their standard-form contracts so as to make it airtight-clear that the writers were giving up their rights to control electronic distribution, in return, perhaps, for a slightly higher fee for the article itself. That was as it should be, because those rights are worthless to individual freelancers, practically speaking, unless the writer happens to have a well-known name or a technical specialty, such as science or exotic travel, that would create a noticeable hole in the database should the writer choose to play hardball and refuse to sign.

"The value in those rights is the holdout value, because newspapers want to be able to sell complete databases," Douglas Lichtman, a professor of copyright law at the University of Chicago, explained to me. "If you can say, 'I am the theater critic for the New York Times, and you can't place my stuff in your database,' you might have some clout. But if you're unsuccessful, you lose completely. You won't be able to sell your writing" to the databases. Lichtman calls the Tasini suit "a historical accident." In retrospect, everyone knew what the contracts should have said, "which is why they were changed. The Tasini decision was good law but bad policy."

AFTER THE RULING CAME DOWN from the Supreme Court, the New York Times issued an internal memo, later leaked to the press, that warned its editors not to run articles by any of the name-plaintiffs in that case. This might have seemed a reasonable precaution, for few people care to do business with someone who has sued them, but the plaintiffs seized the opportunity to declare that they had been "blacklisted" by the Times. The martyrs styled themselves the "Tasini Thirteen" in the manner of the Hollywood Ten. Behind the scenes, however, most of them, including H. Bruce Franklin, who had a dispute with the Atlantic, quietly settled their electronic claims for undisclosed amounts.

Meanwhile, the class-action suit on behalf of the rest of us went on file. As far as the legal issues were concerned, the class-action was shooting fish in a barrel, since the federal appeals court had already ruled in our favor in Tasini and the Supreme Court was about to affirm. The trick to our case--and maybe that's what makes it worth $4 million in legal fees--was to pry a substantial settlement out of an array of major print-media publishers without quite letting on that nearly 100 percent of us would likely never have been able to prove that we were owed a nickel in damages from any of them because we'd never registered our copyrights.

Indeed, when I asked Kay Murray, general counsel for the Authors Guild, how many members of the plaintiff-class were actually holders of registered copyrights in her estimate, she replied, "I can't discuss that." Her response helps explain our lawyers' eagerness to ensure that all the name-plaintiffs in our case, the ones who were supposed to be "representative" of the rest of us, were duly registered and thus were entitled to receive at least some statutory damages in court had they sued individually. My source informs me that the writers' organizations first tried to persuade the publishers to set up an automatic licensing and royalty-check system for writers in databases along the lines of the ASCAP system in the music industry. The publishers refused to do that--so organizations went for the next-best arrangement that would make them look as though they were doing something for their members: a multi-tiered, jerry-built settlement that hands out piddling sums to vast numbers of people who actually deserve nothing at all.

The biggest problem "our" lawyers now face is finding enough freelance writers who feel sufficiently enraged about the infringement of their copyrights by Big Capitalist Media that they'll be willing to take time away from their writing in order to search through their files of yellowing clips and enter the necessary data on their proof-of-claim worksheets so they can collect their few hundred bucks. I've asked around among some fellow writers who received the notice of settlement, and their responses have ranged from "What?" to "I'm not gonna bother," to "Oh, I just threw that stuff out." My own position is that I could make more money using the time to write another article. I may change my mind, however, for the settlement document contains a kind of prisoner's dilemma: If the total amount claimed by those who do file forms doesn't exceed $10 million, the overage (up to the $10 million) will go on a pro rata basis to those who file. Now there's an incentive!

Alternatively, I could file a protest of the entire settlement, but then I'd have to show up in person (or send a lawyer to show up) in federal court in Manhattan on July 28, the date of a scheduled hearing on whether to approve the terms. In any event, my protests are more general. They concern a class-action system that rewards lawyers to the tune of millions of dollars for cherry-picking easy legal battles, and a court system that is willing to dissipate even more millions of dollars on people like me who cannot prove that they were injured in the smallest way. If the National Writers Union wants to do something for writers, instead of fooling around with Lexis/Nexis, why doesn't it try to get us bigger fees for our articles in the first place? Hell, I might even decide to become a Marxist and join up.

Charlotte Allen is author, most recently, of The Human Christ.